Collaboration Required: E-Discovery Discovery About Discovery

Ruiz-Bueno, III v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013)

In this wrongful death case, plaintiffs sought to compel defendants’ response to a set of interrogatories, asking: “(1) what efforts they made to comply with plaintiffs’ previous discovery requests, and (2) what procedures or methods were used to search for responsive electronically stored information, or ESI.” Defendants objected, arguing that “discovery about discovery” was not related to any claim or defense in the matter, and was therefore outside the scope of discovery allowed by Fed. R. Civ. P. 26(b)(1), which limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense”.

Defendants stated that their paltry ESI production was related to sporadic use of email by employees, and that each employee was asked to produce any emails that might be relevant to the matter. Anyone familiar with e-discovery and computer forensic best practices might take issue, as did the court, with this haphazard collection practice. No record was kept of how the 50 employees searched for emails, what keywords were used, nor which sender and recipient names were deemed relevant.

Plaintiffs grew worried about defendants’ ESI search procedures, and expressed concern regarding defendants’ reluctance to provide requested documents. Defendants countered that the requested information was irrelevant, and that all of plaintiffs’ concerns had been satisfactorily addressed. Plaintiffs then sought to compel production of information sought via prior interrogatories.

The court found that “discovery about discovery” is acceptable under certain circumstances, specifically in this case because defendants had not been “forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process” after plaintiffs complained about the small amount of ESI provided. The court went on to state:

In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements about proper search protocols, and would have actively sought to avoid such disagreements through collaboration.  That concept appears in Fed.R.Civ.P. 26(f), which requires the parties to meet and confer early in the case about, among other matters, discovery, and, more specifically, to discuss ‘any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced….’  Rule 26(f)(3)(C).  That discussion can and should include cooperative planning, rather than unilateral decision-making, about matters such as ‘the sources of information to be preserved or searched; number and identities of custodians whose data will be preserved or collected …; topics for discovery; [and] search terms and methodologies to be employed to identify responsive data….’ Milberg LLP and Hausfeld LLP, ‘E–Discovery Today: The Fault Lies not in Our Rules …,’ 4 Fed. Cts. L.Rev. 131, 163 (2011).  When that occurs, each party is able to exert some measure of control over the e-discovery process, and, in turn, to have some measure of confidence in its results.”

Defendants then presented the argument that the requested level of cooperation would result in “an intrusion into privileged areas”. The court disagreed, holding that a discussion between parties regarding how to best search for relevant, requested ESI is neither burdensome nor a cause for concern about revealing confidential client materials. Turning to the importance of collaboration between the parties, the court stated:

What should have occurred here is that either as part of the Rule 26(f) planning process, or once it became apparent that a dispute was brewing over ESI, counsel should have engaged in a collaborative effort to solve the problem. That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough. That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable. That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.”

While the court noted that “discovery about discovery” is not appropriate for every case, defendants were ordered to respond to plaintiffs’ interrogatories. The court shared plaintiffs’ concerns related to the volume of ESI produced, reluctance to produce requested information, and general contrarian behavior throughout the discovery process. The court threatened defendants with sanctions if they did not correct their curmudgeonly attitude. Elijah’s state-of-the-art e-discovery technology and consulting services provide complete and timely document production and support. For more information about Elijah’s e-discovery solutions please visit, for general information visit, and to contact one of our ESI experts call 866-354-5240 or email